PROTECT FAYETTEVILLE, F/K/A REPEAL 119; PAUL SAGAN; PETER TONNESSON; AND PAUL PHANEUF APPELLANTS
THE CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS; LIONELD JORDAN, IN HIS OFFICIAL CAPACITY AS MAYOR OF FAYETTEVILLE; ADELLA GRAY; SARAH MARSH, MARK KINION, MATTHEW PETTY, JUSTIN TENANT, MARTIN W. SCHOPPMEYER JR., JOHN LATOUR, AND ALAN LONG, IN THEIR OFFICIAL CAPACITIES AS ALDERMEN OF THE FAYETTEVILLE CITY COUNCIL APPELLEES AND THE STATE OF ARKANSAS INTERVENOR
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-15-1510]
HONORABLE DOUG MARTIN, JUDGE
Law Firm, PLLC, by: Travis W. Story, Katie L. Freeman, and
Bob Ballinger, for plaintiff-appellants.
Rutledge, Att'y Gen., by: Lee Rudofsky, Ark. Solicitor
General, for intervenor-appellant.
Williams, Fayetteville City Att'y, and Blake Pennington,
Ass't City Att'y, for appellees.
JOSEPHINE LINKER HART, Associate Justice.
Protect Fayetteville, f/k/a Repeal 119; Paul Sagan; Peter
Tonnesson; and Paul Phaneuf, appeal from the circuit
court's decision finding that the passage of Ordinance
5781 by the Fayetteville City Council, entitled "An
Ordinance To Ensure Uniform Nondiscrimination Protections
Within The City of Fayetteville For Groups Already Protected
To Varying Degrees Throughout State Law, " did not
violate Act 137 of 2015, the Intrastate Commerce Improvement
Act, codified at Ark. Code Ann. § 14-1-401 to -403
(Supp. 2015). We reverse and remand.
February 24, 2015, Act 137 was approved without an emergency
clause. The effective date of all acts without an emergency
clause or a specified effective date was July 22, 2015.
Arkansas Code Annotated section 14-1-402 provides as follows:
(a) The purpose of this subchapter is to improve intrastate
commerce by ensuring that businesses, organizations, and
employers doing business in the state are subject to uniform
nondiscrimination laws and obligations, regardless of the
counties, municipalities, or other political subdivisions in
which the businesses, organizations, and employers are
located or engage in business or commercial activity.
(b)The General Assembly finds that uniformity of law benefits
the businesses, organizations, and employers seeking to do
business in the state and attracts new businesses,
organizations, and employers to the state.
the General Assembly's stated purpose for passage of the
Act was to improve intrastate commerce by ensuring that
various entities in the state are subject to uniform
nondiscrimination laws. Arkansas Code Annotated section
14-1-403 provides as follows:
(a)A county, municipality, or other political subdivision of
the state shall not adopt or enforce an ordinance,
resolution, rule, or policy that creates a protected
classification or prohibits discrimination on a basis not
contained in state law.
(b)This section does not apply to a rule or policy that
pertains only to the employees of a county, municipality, or
other political subdivision.
16, 2015, the Fayetteville City Council passed Ordinance
5781. The Ordinance notes that various laws, including the
Civil Rights Act, the Arkansas Civil Rights Act of 1993, and
the Arkansas Fair Housing Act, provide "Fayetteville
citizens with protections against discrimination on the basis
of race, ethnicity, national origin, age, sex, religion and
disability." The Ordinance further notes that the
Arkansas General Assembly "has determined that
attributes such as 'gender identity' and 'sexual
orientation' require protection, " citing Ark. Code
Ann. § 6-18-514(b)(1) (Repl. 2013), which is a statute
addressing antibullying policies in public schools. The
Ordinance provides that the "protected
classifications" in the antibullying statute "for
persons on the basis of gender identity and sexual
orientation should also be protected by the City ...